647 F.2d 1130 (D.C. Cir. 1980), 78-2201, Lead Industries Ass'n, Inc. v. E.P.A.

Docket Nº:78-2201, 78-2220.
Citation:647 F.2d 1130
Party Name:Envtl. LEAD INDUSTRIES ASSOCIATION, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Bunker Hill Company, Intervenor. ST. JOE MINERALS CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Bunker Hill Company, Intervenor.
Case Date:June 27, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1130

647 F.2d 1130 (D.C. Cir. 1980)

Envtl.

LEAD INDUSTRIES ASSOCIATION, INC., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Bunker Hill Company, Intervenor.

ST. JOE MINERALS CORPORATION, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Bunker Hill Company, Intervenor.

Nos. 78-2201, 78-2220.

United States Court of Appeals, District of Columbia Circuit

June 27, 1980

Argued Nov. 7, 1979.

Certiorari Denied Dec. 8, 1980. See 101 S.Ct. 621.

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Edwin H. Seeger, Washington, D. C., with whom Gary M. Welsh and Richard T. Witt, Washington, D. C., were on the brief, for petitioner in No. 78-2201 and for intervenor in both cases.

Robert A. Emmett, Washington, D. C., with whom John McN. Cramer, Washington, D. C., was on the brief, for petitioner in No. 78-2220.

James N. Cahan, Atty., Environmental Protection Agency, and Michael P. Carlton, Atty., Dept. of Justice, Washington, D. C., with whom Sanford Sagalkin, Acting Asst. Atty. Gen., Angus MacBeth, Atty., Dept. of Justice, Joan Z. Bernstein, Gen. Counsel, Environmental Protection Agency, and Gerald K. Gleason, Deputy Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C., were on the brief, for respondent. James W. Moorman, Atty., Dept. of Justice, and Jeffrey O. Cerar, Atty., Environmental Protection Agency, Washington, D. C., also entered appearances for respondent.

David Schoenbrod, Washington, D. C., for amici curiae Natural Resources Defense Council, Inc. et al. urging affirmance in both cases.

Kathleen W. Mikkelson, Deputy Atty. Gen., State of California, San Francisco, Cal., was on the brief for amicus curiae Air Resources Board, State of California, urging affirmance in both cases.

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Before WRIGHT, Chief Judge, and ROBINSON and MacKINNON, Circuit judges.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Chief Judge:

This is the third occasion on which this court has been asked to review Environmental Protection Agency (EPA or Agency) regulations promulgated under authority of the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq. (Supp. I 1977) (the Act), and specifically designed to deal with the health problems associated with lead in the ambient air. In Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C.Cir.1974), we upheld regulations prohibiting the sale of leaded gasoline for use in automobiles equipped with "catalytic converter" devices for controlling exhaust emissions and requiring widespread retail marketing of at least one grade of unleaded gasoline. And in Ethyl Corp. v. EPA, 541 F.2d 1 (D.C.Cir.) (en banc ), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976), we affirmed an EPA order requiring annual reductions in the lead content of leaded gasoline. In the present consolidated cases we are asked to review EPA regulations establishing national ambient air quality standards for lead. These air quality standards prescribe the maximum concentrations of lead that will be permitted in the air of our country. We must decide whether EPA's Administrator acted within the scope of his statutory authority in promulgating these regulations and, if so, whether the evidence adduced at the rulemaking proceeding supports his final determinations. In addition, we must examine the petitioners' claims that infirmities in the procedures employed by EPA in this rulemaking warrant remand of the regulations to the Agency. Petitioners are the Lead Industry Association, Inc. (LIA), a nonprofit trade association whose 78 members include most of the country's producers and commercial consumers of lead (No. 78-2201), and St. Joe Minerals Corporation (St. Joe) (No. 78-2220). 1

I. BACKGROUND

Man's ability to alter his environment to achieve perceived goals has undoubtedly made an enormous contribution to his economic and social well-being. This undertaking is not, however, without attendant costs. One of these costs is the toll that these alterations may exact on the environment itself and, in turn, the dangers that this may pose for the public health and welfare. Unfortunately, man's ability to alter the environment often far outstrips his ability to foresee with any degree of certainty what untoward effects these changes may bring. The issues presented by these cases illustrate this sad fact.

Lead's environmental significance is a consequence of both its abundance and its utility. The relative abundance of lead in the earth's crust makes it unique among the toxic heavy metals. EPA's "Air Quality Criteria For Lead" (hereinafter cited as CD) 1-1, Joint Appendix (JA) 1105. And centuries of mining and smelting, and the use of lead in a variety of human activities, have increased the natural background concentration of lead in the environment. Id. But it is only since the industrial age and the use of lead as a gasoline additive that lead has become pervasive. Id. at 1-2 1-3, JA 1106-1107. Today lead is ubiquitous. It is found in almost every medium with which we come into contact food, water, air, soil, dust, and paint, id. 1-1, JA 1105, each of which represents a potential pathway for human lead exposure through ingestion or inhalation. The widespread presence of this toxic metal in the environment poses a significant health risk. Lead is a poison which has no known beneficial function in the body, id. 1-12, JA 1116, but when present in the body in sufficient concentrations lead attacks the blood, kidneys, and central nervous and other systems and can cause anemia, kidney damage, severe

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brain damage, and death. Id. 1-6 1-9, JA 1110-1113. 2

There are three major sources of the body's lead burden. In most people the largest source is diet. CD 7-9, JA 1179. 3 Another source, particularly in children, is the habit of placing hands, objects, and materials in the mouth. 4 The third major source is the ambient air; airborne lead is deposited in the respiratory tract as a person breathes lead-contaminated air and is subsequently absorbed into the bloodstream. CD 1-5, JA 1108. Once the lead is in the bloodstream its source is immaterial; total lead intake is the sum of the intake from all these sources. The multiplicity of sources of lead intake increases the difficulty of controlling human lead exposure. Much of the protective activity in this area has focused on limiting the amount of lead in the ambient air, the most controllable source of lead exposure. In this country, by far the largest source of lead emissions accounting for 88 percent of total lead emissions according to EPA estimates is the exhaust of motor vehicles powered by gasoline containing lead additives. CD 5-3, JA 1140. Another eight percent of lead emissions is the result of solid waste incineration and combustion of waste oil. Id. Industrial facilities account for the remaining four percent of total lead emissions. Id.

Acting pursuant to authority conferred on it by Congress in the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., EPA has been involved in regulation of lead emissions almost since the Agency's inception. 5 Its initial approach to controlling the amount of lead in the ambient air was to limit lead emissions from automobiles by restricting the amount of lead in gasoline. To this end it promulgated the regulations which we upheld in Amoco Oil Corp. v. EPA, supra, and Ethyl Corp. v. EPA, supra. However, in 1975 the Natural Resources Defense Council, Inc. (NRDC), and others brought suit against EPA claiming that the Agency was required by Section 108 of the Clean Air Act, 42 U.S.C. § 7408, to list lead as a pollutant for which an air quality criteria document would be prepared, and for which national ambient air quality standards should be promulgated under Section 109 of the Act, 42 U.S.C. § 7409. The District Court agreed with NRDC and directed the Administrator to list lead as a pollutant under Section 108 of the Act, by March 31, 1976. Natural Resources Defense Council, Inc. v. Train, 411 F.Supp. 864 (S.D.N.Y.1976). The Second Circuit affirmed, 545 F.2d 320 (2d Cir. 1976), and EPA initiated the proceedings outlined in the statute which are under review here.

II. THE STATUTORY SCHEME

The first step toward establishing national ambient air quality standards for a particular pollutant is its addition to a list, compiled by EPA's Administrator, of pollutants that cause or contribute to air pollution "which may reasonably be anticipated to endanger public health or welfare(.)" Section 108(a)(1), 42 U.S.C. § 7408(a)(1). Within twelve months of the listing of a pollutant under Section 108(a) the Administrator must issue "air quality criteria" for the pollutant. Section 108 makes it clear that the term "air quality criteria" means something different from the conventional meaning of "criterion"; such "criteria" do not constitute "standards" or "guidelines," but rather refer to a document to be prepared by EPA which is to provide the scientific

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basis for promulgation of air quality standards for the pollutant. This criteria document must "accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities." Section 108(a)(2), 42 U.S.C. § 7408(a)(2).

At the same time as he issues air quality criteria for a pollutant, the Administrator must also publish proposed national primary and secondary air quality standards for the pollutant. Section 109(a)(2), 42 U.S.C. § 7409(a) (2). National primary ambient air quality standards are standards "the attainment and maintenance of which in the judgment of...

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